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The Bill of Rights comprises the first ten amendments to the United States Constitution. Virginia’s legislature became the last to ratify these first amendments on December 15, 1791.

Often, people believe that none of these ten rights can be “infringed” as in undermined, restricted, limited, weakened, impaired … especially the Second Amendment. However, since adoption of these amendments, all ten so-called rights have been infringed more than once.

The Second Amendment says:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

First, believing that the/a “Militia” has nothing to do with firearm ownership in the United States is certainly questionable. If it has nothing to do with it, why is it mentioned in the Second Amendment? Why is this prefatory clause there?

Some think this prefatory clause is to simply give an example of when (or why) someone should be able to keep and bear arms. Others think it means that the right to keep and bear should be for only forming a militia; nonetheless, we’re not here to answer that question.

Since the National Firearms Act in 1934, and the subsequent ruling in United States v. Miller, 307 U.S. 174 (1939) (Miller) by the Supreme Court of the United States, firearms have been regulated (infringed) in the United States.

Beginning in 1939, the right to own a firearm in the United States was viewed as a “collective right” and was limited. Then, in 2008 in District of Columbia v. Heller, 554 U.S. 570 (2008) (Heller) the right to own a firearm in the United States became an “individual right.”

Nonetheless, firearm ownership today is infringed and not guaranteed as federal law prohibits certain individuals from purchasing and/or possessing a firearm including convicted felons, domestic abusers, and people with specific kinds of mental health histories. Too, automatic weapons and other similar devices are either prohibited or must be registered following a background check.

Further, certain age persons cannot own a firearm, and interstate sales require a Federal Firearms Licensee be involved. A few states have enacted even more restrictive firearms laws, falling just short of what would be considered “an undue burden.”

In Heller, conservative Justice Antonin Scalia wrote for the majority:

We also recognize another important limitation on the right to keep and carry arms. ‘Miller’ said, as we have explained, that the sorts of weapons protected were those ‘in common use at the time.’ 307 U.S., at 179, 59 S.Ct. 816. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’

The actual ruling in Heller can be read here which restates and further clarifies our above quote from Scalia and our summary herein: https://www.law.cornell.edu/supct/html/07-290.ZS.html

There is no foreseeable trend making firearm ownership in the United States any less infringed nor more guaranteed, and rather if anything as Heller would permit, it will likely become more infringed and less guaranteed in the coming years.

As such, saying that our constitution guarantees the right to keep and bear arms and/or that such right cannot be infringed is incorrect. We have the right to “keep and bear” so long as that right isn’t currently — by law — infringed.

Auctioneers selling firearms at auction are cautioned to know all the laws which regulate such commerce. The penalty for an auctioneer selling a firearm out of compliance with these laws can result in significant fines and up to ten years in prison. We have written about such laws numerous times including here: https://mikebrandlyauctioneer.wordpress.com/2016/01/11/15-things-about-auctioneers-and-guns/

Mike Brandly, Auctioneer, CAI, AARE has been an auctioneer and certified appraiser for over 30 years. His company’s auctions are located at: Mike Brandly, Auctioneer, RES Auction Services and Goodwill Columbus Car Auction. He serves as Distinguished Faculty at Hondros College of Business, Executive Director of The Ohio Auction School, an Instructor at the National Auctioneers Association’s Designation Academy and Texas Auction Academy. He is faculty at the Certified Auctioneers Institute held at Indiana University and is approved by the The Supreme Court of Ohio for attorney education.